JUDGMENT

Low Hop Bing JCA:

Appeal

[1] After a full trial, the learned judge of the Kuching High Court ("the trial judge") dismissed the appellant's ("the plaintiff's) claim with costs. This is the plaintiff's appeal against that decision.

Plaintiff's Claim

[2] The plaintiff's claim against the respondent ("the defendant") is for damages and loss sustained by the plaintiff as a result of an alleged breach of agreement entered into between the plaintiff and Arena Jernih Sdn Bhd ("Arena Jernih") as the defendant's attorney or agent for the supply of engineering works, thereby making the defendant primarily liable for RM230,019.75 due under a payment certificate, RM36,767.75 (ie RM11,210 plus RM25,557.75 being retention monies), RM30,000 being costs of standby machinery, and damages to be assessed, in addition to interest and costs.

Finding Of Facts By Trial Judge

[3] At all material times, the defendant was the registered owner of the land known as "Lot 16 Block 1 Miri Concession Land District" ("the land").

[4] The defendant entered into a development agreement dated 22 July 1994 with Arena Jernih ("the DA") to develop the land into an industrial, commercial and housing estate ("the project"). Subsequently, on 8 August 2000, the defendant and Arena Jernih entered into a variation agreement.

[5] By power of attorney dated 26 June 1996 and registered at the Miri Land Registry as Instrument No. L6200/1996 ("the PA"), the defendant appointed Arena Jernih as its lawful attorney to do the acts, matters, deeds and things as specified therein. The recital to the PA expressly referred to the DA. The PA included, under clause (11) thereof, the power to engage, employ, inter alia , contractors concerning the planning and development of the project.

[6] On or about 14 September 2000, Arena Jernih engaged the plaintiff to carry out certain engineering works on the land.

[7] However, on 22 December 2000, Arena Jernih suspended the engineering works.

[8] Instead of suing Arena Jernih, the plaintiff filed a claim against the defendant.

[9] In dismissing the plaintiff's claim, the trial judge held that:

(1) Upon a true construction of the PA and the DA, the PA was given for the purpose of facilitating Arena Jernih to carry out its obligations under the DA; and

(2) There was no agency relationship between the defendant and Arena Jernih and so the defendant could not be held liable for the plaintiff's loss and damage arising from the supply of engineering works by the plaintiff to Arena Jernih.

Agency Relationship

[10] Learned counsel Mr. M.S. Sandhu (assisted by Mr Bong Ah Loi) in attributing liability to the defendant submitted for the plaintiff that the PA should be construed within the four corners thereof. For this proposition, they relied on:

(1) Bryant, Powis and Bryant Ltd v. LA Banque Du Peuple [1896] AC 170 PC;

(2) Chitty on Contracts 28th edn (1999) Vol. para 12-063; and

(3) Bowstead on Agency 13th edn, p. 65.

[11] Mr. Keong Yi, learned counsel for the defendant, preferred a conjunctive construction of the PA and the DA, to support his contention that the defendant is not liable. He drew the Court's attention to:

(1) Magnum Finance Bhd v. Ling Sing Ping ; and

(2) Glamour Green Sdn Bhd v. Ambank Bhd & Ors & Another Appeal, [2007] 3 CLJ 413 CA .